2 Indian Terr. 456 | Ct. App. Ind. Terr. | 1899
Lead Opinion
The record in this case is as follows: “Now comes the United States, by its attorney, and comes the defendant in person and by counsel, and comes a jury of twelve men of the regular panel, who are duly sworn and impaneled to try the issues herein, and the defendant is thereupon duly arrainged, and refuses to plead. It is ordered by the court that a plea of not guilty be entered herein, and, after hearing the evidence, the instructions of the court, and the arguments of counsel, they retired to consider of their verdict,” etc. It is not necessary to proceed with the record further.
Appellant assigns as error this proceeding of the court: “(11) The'judgment should have been arrested on the ground that the defendant was not arrainged before the jury was sworn to try the case.” Before a trial by jury in any case can commence or proceed, there must be an issue joined. Ordinarily, the issue to be tried by a jury in a criminal case is, “Guilty or not guilty,” raised by the plea of “Not guilty” interposed by defendant upon his arraignment, or entered by the court where the defendant stands mute, or refuses to plead. After issue joined, this case may then lawfully and regularly proceed to trial by the examination, swearing, and impaneling of a jury. In this case the jury
It has been hold to be error to swear the jury to pass upon the guilt or innocence of the accused before calling upon him to plead. The court said that, until the prisoner was called upon for his plea, it could not be known whether there would be an issue of fact for the jury, or what the issue (if any) might be; but the prisoner, instead of submitting the question of his guilt, may have pleaded in abatement, or have presented to the court legal objections to the indictment; and that, though a formal arraignment of one charged with a criminal offense may not be indispensable to the legality of conviction, it was clear that the case must be putin a condition for trial before the jury are sworn. State vs Hughes, 1 Ala. 655-657. In Sartorious vs State, 24 Miss. 602, 611, 612, which was .an indictment for buying certain goods knowing them to be stolen, the court said: “In trials for minor offenses, a formal arraignment in practice is generally dispensed with. In such cases, where the defendant has pleaded to the indictment, arraignment will be presumed. But a party, before he can be put on his trial, must plead to the indictment. In civil proceedings it is error to submit a case to the jury without an issue in fact having been made up by the parties. In prosecution for offenses, it must be clearly erroneous to put a party upon his trial unless he has taken issue upon the charge by pleading to the indictment.” In Bowen vs State, 108 Ind. 411 — 418, 9 N. E. 379, the court said: “Under the decisions of this court it’ can no longer be recognized as a subject of controversy that, where the record in a criminal case fails to disclose affirmatively that a plea to the indictment was entered either by or for the defendant, such record, on its face, shows a mistrial, and that the proceedings were, consequently, erroneous, to say the least. ” The same doctrine has been universally held by the supreme court of the state
Dissenting Opinion
I dissent from the opinion of the court in this case. My views upon the question involved are set forth at length in the opinion of this court in the case of Gaines vs U. S., reported in 1 Ind. Ter. 296 (q. v.). The opinion in the Dansby Case overrules that in the Gaines Case. But I still adhere to the opinion in the Gaines Case. Mansf. Dig § 2454, provides that a judgment of conviction in a criminal case shall be reversed only for an error to the defendant’s prejudice appearing on record. There was no possible prejudice to the defendant in the error complained of in the case at bar, and the statute prohibits the court of appeal or a trial court from reversing a judgment in a criminal case unless for error prejudicial to the defendant.